THE HONOURABLE MR v. The Joint Commissioner of Police,Traffic Zone, Vepery, Chennai-7.2.The Deputy Commissioner of Police,Traffic

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 04.01.2007THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.27930 of 2006and M.P.No.1 of 2006G.Anandan... PetitionerVs.1.The Joint Commissioner of Police,Traffic Zone, Vepery, Chennai-7.2.The Deputy Commissioner of Police,Traffic (North), Chennai-7.... RespondentsPRAYER:This writ petition is filed under Article 226 of theConstitution of India to issue a writ of mandamus, calling for therecords in connection with the proceedings issued inC.No.15/PR/SRP/99 TZO.No.266/06 C.No.158/9036 – A/TR.PR(N)/06 dated20.07.2006 and Tha.Pa.No.15/99 Rule 3(Aa) passed by the 2nd respondentand C.No.5/AP/TR.PR(N)/2006 dated 12.08.2006 passed by the 1strespondent and to quash the same and consequently direct therespondents to reinstate the petitioner into service with allbenefits. For Petitioner: Mr.S.IlamvaludhiFor Respondents: Mr.D.Srinivasan, G.A.- - - - - O R D E RThe issue involved in this case is as to whether the order ofremoval passed by the second respondent dated 20.07.2000 andsubsequent confirmation of the same by the first respondent dated12.08.2006, is disproportionate to the charge framed against thepetitioner. The petitioner joined service as a Police Constableand completed more than 15 years of service. While working in thecontrol room traffic on 03.11.1998 he was forced to go on leave butbefore expiry of 60 days, he has reported duty and continuing thesame. https://hcservices.ecourts.gov.in/hcservices/

2. On 05.03.1999 a charge was framed against the petitionerthat he has absented from duty from 03.11.1998 and the EnquiryOfficer in the enquiry report dated 24.05.1999, found the chargesproved against the petitioner. For the charge framed under Rule 3(b)of the Police Subordinate Service Rule, he has submitted hisexplanation on 22.05.1999 and the second respondent after enquiry haspassed the order of removal on 20.07.2006 which was confirmed by thefirst respondent on 12.08.2006. 3. It is the case of the petitioner that in respect ofdesertion, removal from service is a disproportionate punishment. Itis also the case of the petitioner that as per circular issued by theCommissioner of Police, Chennai, dated 05.12.1990 in cases ofdeserters, who were reinstated, after they appeared before the DeputyCommissioner of Police, within the time limit of 60 days, they shouldbe punished only under Rule 3(a) of the Tamil Nadu Police Subordinate(Discipline and Appeal) Rules, for unauthorized absence from duty byimposing minor penalties. 4. The learned counsel for the petitioner would also bring tothe notice of this Court, that a reference to the charge memo showsthat the petitioner who is stated to have deserted on 03.11.1998, onthe 59th day, namely, on 31.12.1998, has reported before theSuperintendent of Police and being satisfied about the medicalcertificate, he was taken into service and therefore, on the basis ofthe circular stated above, it should be referred only under Rule 3(a)and not 3(b). Even the enquiry report also specifically states thatwhen the petitioner has absented on 03.11.1998, on the 59th day he hasreported duty, namely, on 31.12.1998 and he was permitted to joinduty and therefore, it such a case, removal from service isdisproportionate to the charge. 5. On the other hand, it is the case of the respondents as itis seen in the counter affidavit that on an earlier occasion also fornearly 12 times it was noticed that the petitioner has deserted theservice. Earlier also on 29.09.1998 he was removed from service bythe Deputy Commissioner of Police Traffic North and the appeal wasrejected by the Additional Director General of Police and ultimatelyas per the order the Tribunal in O.A.No.5357 of 2000 dated 04.04.2002the petitioner was reinstated. According to the respondents, thecircular dated 05.12.1990 is only an executive instruction it wasbased on the latest instruction of the Director General of Police,dated 02.11.2005 the petitioner was removed from service. https://hcservices.ecourts.gov.in/hcservices/

6. According to the respondents, on various occasions includingthe period between 16.10.1999 to 26.04.2002 the petitioner has beenremained out of employment and therefore, he is a regular deserter,who does not require any sympathy, especially in the disciplinedforce like that of the police force. 7. The learned counsel for the petitioner Mr.S.Ilamvaludhi,would submit that when once the circular issued by the Commissionerof Police dated 05.12.1990 is clear that in case of desertion thecharge should be under Rule 3(a), the punishment of removal is harsh.According to him, the contents of the counter affidavit that based onthe subsequent instruction issued by the Director General of Police,dated 02.11.2005, the petitioner was removed from service isuntenable. According to him, the charges leveled against thepetitioner in this case is dated 05.03.1999 and therefore, evenassuming that an instruction has been issued by the Director Generalof Police on 02.11.2005, the same cannot be made applicable to thefacts and circumstances of the case. The cause of action should beconstrued on the date when the occurrence is stated to have takenplace, based on which the charge has been framed and in the presentcase when it was in 1999 and therefore, the circular issued on02.11.2005 cannot have any application. 8. According to the learned counsel for the petitioner, theappellate authority has not taken anything into consideration at all,except to say in a single line that the punishment is not harsh andthere is no discussion about any of the facts. 9. The learned counsel also would rely upon the judgement ofthe Hon’ble Apex Court in AIR 1999 SC 3367 and also other judgementnamely, AIR 1994 SC 215 apart from 1996(7) SCC 634 to substantiatehis contention that in cases of awarding of disproportionatepunishment, the court is empowered to modify the same. He would alsorely upon the judgement rendered by this Court in J.Patric Vs.Government of Tamil Nadu, rep. by its Secretary, Chennai-9 and othersdated 06.09.2006 in W.P.No.24701 of 2006. That was also a casewherein a Police Constable was not in duty more than 21 days withoutprior permission and an order of compulsory retirement was passed andanalyzing the factual position and also the legal grounds raised, Ihave remitted the matter back to the respondents by setting aside theorder of punishment of compulsory retirement for imposing appropriatepunishment to the petitioner therein. 10. In the present case, factually it is clear that thepetitioner, who has absented on 03.11.1998 has reported before theSuperintendent of Police on 59th day, namely, on 31.12.1998 and on https://hcservices.ecourts.gov.in/hcservices/ referring to the medical certificate and also fitness certificate, hewas also taken back to job. In the context of this factualsituation, it is relevant to point the circular issued by theCommissioner of Police, dated 05.12.1990. It was by that circularthe Commissioner has stated that in respect of disciplinaryproceedings regarding deserters reinstated into service after theyappeared before the Deputy Commissioner of Police within the timelimit of 60 days, it should be taken as unauthorized absence fromduty under Rule 3(a) of the Tamil Nadu Police Subordinate Services(Discipline and Appeal) Rules, and directed to impose minorpenalties. 11. However, the respondents have taken a stand as it is seenin the counter affidavit that it amounts to executive instruction andthat cannot supersede the statutory rules. On the other hand, in thesame counter affidavit, the respondents specifically state that thepunishment of removal against the petitioner has been passed based onthe latest instructions of the Director General of Police of TamilNadu in D.O.Lr.C.No.AP I(1)/223597/2005 dated 02.11.2005. While onthe one hand the respondents have chosen to state that the earliercircular issued by the Commissioner of Police dated 05.12.1990 isexecutive instruction, it is not known as to how the subsequentletter of the Director General of Police dated 02.11.2005 can have astatutory force. 12. In any event in the present case, the petitioner is facingthe charge, which was dated 05.03.1999 in respect of the allegeddesertion from duty on 03.11.1998 and therefore, even assuming thatthere has been any instruction from the Director General of Policedated 02.11.2005, there is no difficulty to arrive at a conclusionthat such instruction cannot be made applicable as far as the factsof the present case is concerned. Therefore, there is certainlysubstance in the argument of the learned counsel for the petitionerbasing reliance upon the circular of the City Police Commissioner,dated 05.12.1990. 13. The further contention raised on behalf of the respondentsthat the petitioner is in the habit of absenting himself, is notrelevant for the simple reason that even admittedly as it is seen inthe counter affidavit, actions were taken earlier and at theintervention of the Tribunal, the action were dropped and it cannotbe said as if it can be a ground for the purpose of imposing a majorpunishment. 14. In any event a reference to the order of the secondrespondent, namely, original authority dated 20.07.2006 as well asthe appellate authority, namely, the first respondent dated12.08.2006 shows that the respondents have not chosen to apply their https://hcservices.ecourts.gov.in/hcservices/ mind for the purpose of giving a proper reason. In fact exceptstating that the respondents are accepting the enquiry report, thereis no independent application of mind by the second respondent beingthe original authority. It is no doubt true that the judgement ofthe Hon’ble Apex Court reported in AIR 1999 SC 3367 rendered in SyedZaheer Hussain Vs. Union of India and others has held that thepunishment of the dismissal can be substituted by lesser punishmentwith reinstatement with 50% cutoff back-wages and also in asubsequent judgement rendered in Pritham Singh Vs. Union of India andothers reported in JT 2004(7) SC 576, wherein also the order ofcompulsory retirement was set aside. 15. In a similar circumstance, the Hon’ble Apex Court in thejudgement rendered in Union of India and others Vs. Giriraj Sharmareported in AIR 1994 SC 215, has also set aside the order ofdismissal directing reinstatement into service with monetarybenefits, leaving it open to the department if so desire to visit thepetitioner with minor punishment. 16. In this regard it is relevant to point out the undertakinggiven by the petitioner in the affidavit filed in support of writpetition that his family problems were enormous and the same has beensettled now. The order of removal from service passed by therespondents against the petitioner dated 21.07.2006 and confirmed on12.08.2006 are set aside. The matter is remitted back to the firstrespondent for the purpose of deciding about the appropriatepunishment in the light of the discussions stated above with a strictwarning to the petitioner not to repeat the same and if repeated thesame will be viewed seriously and on the basis of explanationsubmitted by him and pass appropriate orders within a period of 4weeks from the date of receipt of a copy of this order. The writpetition stands allowed in the above terms. No Costs. Consequently, the connected M.P.is closed. nbjSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Joint Commissioner of Police,Traffic Zone, Vepery, Chennai-7.2.The Deputy Commissioner of Police,Traffic (North), Chennai-7.+ 1 cc to Mr. S. Ilamvaludhi, Advocate SR No. 506/07JRG(CO)SR/10.1.2007 order inW.P.No.27930 of 2006